Behind the headlines: New Acas guidance on age discrimination
Last week I was pleased to see that Acas has ‘published new guidance on Age Discrimination to support employers with managing an age diverse workforce effectively, prevent unfair treatment at work and work further towards eradicating ageist bias against workers’ (1).
This week’s blog goes behind the headlines, covering the high risks areas to beware of where age discrimination can happen, the times when which treating workers differently because of their age of workers is allowed and advice to employers to avoid ageism (2).
Defining age discrimination
According to Acas, with a potential ’age gap between co-workers of 50 years or more’ ageism is ‘one of the most common forms of unfair treatment at work’ (2).
The Equality Act offers protection against ageism on the following grounds:
- protection against unfair treatment because of someone’s actual age, or the age they are thought to be, or the age of someone they are associated with
- protection against harassment because of age, and
- different treatment because of age being allowed in very limited circumstances (2).
High risk areas
Certain areas of business carry a greater risk of ageism occurring. These include:
Recruitment – Age discrimination could happen at any time during the hiring process. Acas reminds us that this can occur ‘from the very beginning of working out what is required of an applicant, through to drafting the job application form, advertising the job, interviewing for it, using social media, and offering the job’ (2).
Training and promotion – Stereotypical thinking or assumptions about age can easily creep into decisions about who gets trained or promoted (2).
Performance management – Appraisals must be conducted free from preconceptions or bias concerning age and employees treated consistently when assessing their performance and goals (2).
Managing under-performance – performance issues should not lead to different treatment because of an employee’s age (2).
Retirement – Acas indicated that ‘in most jobs, there is no longer a set retirement age, meaning almost all employees can decide when they will stop working – but when they can take their work pension will be determined by the pension scheme and Equality Act rules’ (2).
Acas advice for avoiding ageism
- Consider setting out the type or types of experience needed for a role rather than ask for a certain number of years’ experience
- A specific qualification should only be insisted upon if essential to the role, and the employer could, if necessary, prove in law the need for that qualification
- Give applicants the option to demonstrate in another way the knowledge and aptitudes required – for example, through equivalent qualifications, or skills and knowledge from work experience
- Do not make assumptions about an employee’s needs or ambitions based on their age, length of experience in a job, or length of time with the employer
- Don’t assume there is more value in training younger staff and no or little value in training older employees
- Never discourage an employee with the necessary skills, knowledge and experience from applying for a more challenging job because of their age
- Employers should not prompt discussions around retirement during an appraisal, nor assume an employee is retiring, suggest or force them to do so. However, employers can ask workers what their work plans are in the short, medium and long-term when explaining that this is for workforce planning purposes.
- All under-performing employees must be given a fair chance to reach and maintain an acceptable standard, regardless of their age. If they fail to improve after reasonable steps have been taken to help, only then can an employer consider dismissing them. Dismissal must only be based on relevant facts (2).
When different treatment may be allowed
The Equality Act does however have some exceptions where different treatment because of age can or may be lawful. These include:
- Employers lawfully proving the need to discriminate based on age for example not offering medical benefits to older employees as the premiums are prohibitively expensive so providing cash compensation instead
- National Minimum Wage and National Living Wage, including for apprentices
- Not deducting employee’s National insurance contributions for those over state pension age
- Pay and any extra benefits and perks linked to certain periods of time with the employer, for example long service awards, redundancy pay
- ‘Occupational requirements’ – the rare circumstances when being a particular age or within a particular age range, or not a particular age, is a legal requirement of the job, for example in the acting profession
- Time off rights: employees aged 16 and 17 have the statutory right to time off to study if they left school without a prescribed level of qualifications
- Certain redundancy cases. Acas gives the following example: a company ‘deciding to keep staff who have been with the employer for longer, and making redundant staff with less time with the firm. This is likely to discriminate against younger employees. However, it could be allowed if the employer can prove a lawful business reason in the circumstances – for instance, keeping the most experienced staff who are fully trained and skilled as they are essential to the future of the restructured company’ (2).
Employees can be guilty of age discrimination against colleagues even if the employer has a defence, and agencies who supply workers to others can also be guilty of age discrimination.
With new guidance published there is no better time to brush up on practices, processes and refresh line manager training to avoid ageism:
- Daniel Barnett’s Employment Law Bulletin, 05.02.19